TATE v. WASHINGTON MUTUAL

The opinion of the court was delivered by: REBECCA PALLMEYER, District Judge

MEMORANDUM OPINION AND ORDER

From August 2001 until her termination the following June,
Plaintiff Phalice Tate worked as a "call agent," handling calls
from agents and customers of Defendant Washington Mutual's
mortgage loan business. In this lawsuit, Tate, an
African-American woman, alleges that her discharge was a product
of race discrimination and retaliation. Defendant now moves for
summary judgment, arguing that the undisputed facts establish
that the reason for Ms. Tate's discharge was her refusal to
follow one of the company's important call handling policies, not
her race. Washington Mutual also contends that she has waived her
retaliation claim. For the reasons set forth below, the motion is
granted.

FACTS

The facts set forth here are compiled from the parties'
statements, submitted pursuant to this court's Local Rule 56.1,
and supporting materials. After responding to an online
employment ad, Tate was hired on August 27, 2001 as an entry
level call agent in Washington Mutual's Customer Service Center
(CSC). (Tate Dep. at 21-22; Exhibit A to Defendant's Statement of
Material Facts in Support of its Motion for Summary Judgment
(hereinafter, "Def.'s 56.1 Stmt.") ¶ 25.) The CSC provides
customer service support to Washington Mutual loan agents, as
well as the company's external customers. (Id. ¶ 3.) According
to David Mahmud, Director of the CSC, (Def.'s 56.1 Stmt.), as an
entry level call agent, Plaintiff was expected to field customer
calls, help callers resolve problems with the company's
internet-based computer database system, and, if necessary, refer callers to a higher-level support service for
more difficult problems. (Id. ¶ 6 citing Mahmud Decl., Ex. G to
Def.'s 56.1 Stmt.)

The CSC frequently receives calls from customers who have
called the wrong support service. (Def.'s 56.1 Stmt. ¶ 12.) Under
Washington Mutual policy, when this type of call occurs, the call
agent who receives the call is expected to transfer the call to
the appropriate support service using the "warm" method of call
transfer. (Id.) According to Washington Mutual, a proper "warm
transfer" requires the call agent to: dial the appropriate person
or help desk; wait with the customer on the line for the call to
be answered; introduce the customer to the new call agent;
briefly explain the customer's problem; and then terminate her
participation in the call. (Id.)

During Tate's tenure with Washington Mutual, her direct
supervisor, also referred to as a "team lead," was Robert Jones.
(Id. ¶ 5.) Initially, Jones' supervisor was the Service
Execution Manager, Mary Kuppe, who reported to the Director of
the CSC. (Id.) In November 2001, Steven Durrbeck replaced Kuppe
as Service Execution Manager, and in March 2002, Daud Mahmud
became Director of the CSC. (Id.)

Prior to starting her duties as a call agent, Tate attended a
three-day training course on mortgage banking in Illinois,
followed by a week-long training session in Seattle that was
intended to help her learn how to answer help desk calls and to
familiarize her with the computer applications used to track
customer calls. (Tate Dep. at 43; Def.'s 56.1 Stmt. ¶¶ 26-27.) In
addition to the formal training sessions, Tate also received
on-the-job training from her team leads. (Def.'s 56.1 Stmt. ¶
27.)

Tate's Performance at Washington Mutual

During her 10-month tenure with the company, Tate received a
series of written notices about her performance. The first, a
written "Notice of Concern" submitted by Mary Kuppe, stated that
Kuppe met with Tate on October 5, 2001 to discuss issues with her
attendance as well as the fact that cell phone use is prohibited
while on duty. (Performance Improvement Notice Oct. 5, 2001, Ex. 4 to Tate Dep.) Washington Mutual also claims Kuppe
gave Tate a verbal warning for leaving work early on October 5,
2001. (Def.'s 56.1 Stmt. ¶ 29.) Tate admits to having left work
early that day to pick up her daughter from day care.
(Plaintiff's Answers to Defendant's Statement of Material Facts
in Opposition to Defendant's Motion for Summary Judgment
(hereinafter, "Pltf.'s Ans. to Def.'s 56.1 Stmt."), ¶ 29.) She
also admits to having a discussion with Kuppe about the alleged
unauthorized early departure, but denies receiving any warning
from Kuppe about it. (Id.) Tate claims that she had obtained
permission to leave early from a different supervisor. (Tate Dep.
at 50.)

The next written notice regarding issues with Tate's
performance was a "write-up" for incorrectly logging calls on
December 6, 2001. (Memo Dec. 6, 2001, Ex. 5 to Tate Dep.) This
notice also contained a handwritten comment noting a problem with
the amount of time Tate spent on the phone on personal calls.
(Id.) (The record does not identify the author of this
handwritten notation.) Tate admits that team lead Rob Jones spoke
with her about logging calls and admits to having signed this
document. (Pltf.'s Ans. to Def.'s 56.1 Stmt. ¶ 31.) She denies
that they discussed the amount of time she spent on personal
calls, however, and asserts that the handwritten comment about
that matter did not appear on the document when she signed it.
(Tate Dep. at 62.)

Rob Jones issued a "Notice of Concern" regarding Tate's
performance on January 22, 2002, in which he commented about
excessive numbers of outgoing phone calls and about the amount of
time that Tate spent in "AUX" and "After Call" modes.*fn1
(Performance Improvement Notice Jan. 22, 2002, Ex. G to Tate
Dep.) Tate admits to having received and signed the January 22
notice, in which Jones noted that she had been given written
feedback on the issue of excessive outgoing calls just eleven
days earlier, on January 11. (Pltf.'s Ans. to Def.'s 56.1 Stmt. ¶
34.) Tate also admits to having received a copy of the CSC
Departmental Guidelines on February 5, 2002. (Pltf.'s Ans. to
Def.'s 56.1 Stmt. ¶ 28.) This document included a description of
the company's "Warm Transfer" policy, (Washington Mutual CSC
Departmental Policy at WM000094, Ex. 3 to Tate Dep.), as well as
the policy prohibiting call agents at Tate's level from using
personal laptops computers while on duty. (Id. at WM000093.)
Nevertheless, on February 7, 2002, Jones and Alexandro Ho,
another team lead, issued a written warning to Tate for bringing
her personal laptop computer to work in violation of the company
policy. (Performance Improvement Notice Feb. 7, 2002 Ex. 7 to
Tate Dep.) Tate claims that she brought the computer to work so
that a co-worker could fix it for her. She wrote a comment on the
written warning expressing her disagreement with her supervisors'
complaints and claiming that she was being "picked on" because
she "speaks her mind." (Id.)

In late March or early April 2002, Tate submitted a written
complaint to Marsha McMahon, the company's Employee Relations
consultant, regarding behavior of her fellow employees on the
Seattle training trip they had taken in September 2001. (Tate
Dep. at 85.) Tate claimed that several co-workers had taken her
to a gay bar for drinks and that while there, the co-workers
discussed how to get the drug "Ecstasy." (Pltf.'s Ans. to Def.'s
56.1 Stmt. ¶¶ 38-39.) Tate also complained that one of her
co-workers came to a training session smelling of vomit and
alcohol. (McMahon Decl. ¶ 5, Ex. I to Def.'s 56.1 Stmt.) Tate
testified that she had informed her supervisor, Kuppe, about this
incident back in October 2001 and that, after that time, her
managers had started mistreating her in retaliation for reporting
the incident. (Tate Dep., at 76.) When asked to describe how Rob
Jones mistreated her, Tate stated that "every little thing he was
just on me about whereas he was not with everyone else." (Id.,
at 77.) Tate's only specific example of this mistreatment was
Jones's monthly conversations with her about spending too much
time in the bathroom. (Id.) Tate also alleges that she was
denied attendance at a week-long training session in April 2002
to take place in Irvine, California on the company's computer
systems. (Tate Dep., at 114.)

McMahon met with Tate to review her complaint and promised to
get back to her after conducting an investigation. (McMahon Decl.
¶ 6.) McMahon claims that she spoke with all the employees who
were present at the bar when the alleged incident occurred and
that "all of them denied that the discussion about Ecstacy had
taken place as Tate described it," although her statement did not
elaborate as to how the other employees described the
conversation. (Id.) McMahon also claims that Alex Ho told her
that the co-worker Tate complained about was ill while at
training, not drunk. (Id.)

Washington Mutual asserts that Tate was cited for inappropriate
use of language in May. (Performance Improvement Notice May 22,
2002, Ex. 9 to Tate Dep.) A written "Notice of Concern" dated May
22, 2002 was issued by Tate's manager, but Tate denies receiving
it and no copy of the document signed by Tate appears in the
record. (Id.) Washington Mutual alleges that one of Tate's
co-workers, Debbie Caldwell, had complained to Durrbeck that Tate
had threatened members of her work group, warning them that if
she found out who had reported her bad language, she would take
action against them. (Durrbeck Decl. ¶ 5, Ex. H to Def.'s 56.1
Stmt.) As a result, on May 24, 2002, Rob Jones issued a written
warning citing Tate for continued use of inappropriate language
and threats made to her co-workers. (Performance Improvement
Notice May 24, 2002, Ex. 10 to Tate Dep.) Tate refused to sign
the document, but responded with a handwritten comment on the
document that the allegations were not true. (Id.)

Events Leading Up to Discharge

By early June, Durrbeck's dissatisfaction with Tate's
performance escalated and he recommended to Mahmud, the
department Director, that Tate be terminated. (Mahmud Decl. ¶ 25,
Ex. G to Def.'s 56.1 Stmt.; Durrbeck Decl. ¶ 6.) After reviewing
the internal documentation of Tate's performance issues, Mahmud
decided that Tate should instead be counseled regarding her
performance issues and given an opportunity to improve. (Mahmud
Decl. ¶ 25; Durrbeck Decl. ¶ 6.) Durrbeck then issued a "Performance Improvement Follow Up"
notice which was presented to Tate at a meeting on June 3, 2002
at which her direct supervisor, Jones, was also present.
(Durrbeck Decl. ¶ 7; Performance Improvement Followup Jun. 3,
2002, Ex. 11 to Tate Dep.) This document noted several areas of
needed improvement including: unauthorized cellular phone use
during business hours; excessive incoming and outgoing calls;
excessive absences; and failure to execute the "Warm Transfer"
policy. (Performance Improvement Followup Jun. 3, 2002.) The
document also clearly stated that any further violations of these
policies would result in termination. (Id.)

While conducting routine monitoring of agent telephone service
that very same day, Durrbeck overheard what he characterized as a
"cold transfer" by Tate. (Def.'s Stmt. of Facts, ¶ 56.)
Specifically, while monitoring Tate's phone line, Durrbeck heard
a customer conversing with a call agent at a different help desk
without Tate's involvement, demonstrating that Tate had not
"signed off" the call as required by the "warm transfer" policy.
Durrbeck approached Tate's desk and observed her with her CSC
headset on one ear and her personal cell phone to the other ear,
engaged in a conversation on her personal telephone. (Id. ¶
57.) Durrbeck asked her if she was on a customer call and she
replied that she was waiting for someone to pick up, and then
acted as though she were speaking to someone who had just come on
the line. (Id.) When Durrbeck returned to his desk and resumed
monitoring Tate's line he concluded that Tate had not, in fact,
picked up a new call because, as before, he heard the same
customer and call agent conversing. (Id. ¶ 58.) Durrbeck
concluded that Tate was attempting to make him believe that she
had made a warm transfer when she had not. (Id. ¶ 57.) Durrbeck
documented this incident in an "Employee Communication Log."
(Employee Communication Log, Ex. 13 to Tate Dep.) Later that day,
when Durrbeck asked her about this phone conversation, Tate
denied the allegation and asserted that she had transferred the
call in accordance with the company's warm transfer policy.
(Durrbeck Decl. ¶ 19.) Later that day, Durrbeck approached Tate
and asked her to explain the warm transfer policy, which she did correctly. (Def.'s 56.1 Stmt. ¶ 59.)
Durrbeck issued a written "Performance Improvement Followup"
regarding this interaction. (Performance Improvement Followup
Jun. 5, 2002, Ex. 14 to Tate Dep.) The court notes that this
document does not bear Tate's signature.

Durrbeck continued to monitor Tate's phone line. On June 5,
2002 Durrbeck reviewed a tape of Tate's calls and concluded from
the recording that, out of nineteen calls recorded, Tate had made
two cold transfers, had taken five personal calls and had
deliberately dropped a legitimate customer call to continue a
personal call. (Durrbeck Decl. ¶ 20.) A transcript of the
recording was provided in the record. (Durrbeck Decl., Ex.
1).*fn2

On June 6, 2002, Tate and two co-workers returned late from
lunch. (Tate Dep. at 150-52.) Tate received a written performance
notice regarding this issue. (Performance Improvement Followup
Jun. 6, 2002, Ex. 16 to Tate Dep.) Tate claims that the two
co-workers who returned from lunch late along with her, Christine
Massey and Debbie Caldwell, were not given written notices. (Tate
Dep. at 152.) Durrbeck asserts that he gave verbal reprimands to
Ms. Massey and Ms. Caldwell later that day. (Durrbeck Decl. ¶
23.) Tate alleges that this differential treatment was a function
of race discrimination. (Plaintiff's Memo of Law in Opposition to
Washington Mutual's Motion for Summary Judgment (hereinafter
"Pltf.'s Opp. Memo"), at 7.)

On June 7, 2002, there was an act of vandalism in the
Washington Mutual parking lot in which someone spray-painted the
back of Rob Jones' car. According to Durrbeck, two Washington
Mutual employees suspected that Tate was the perpetrator.
(Durrbeck Dep. 7/15/03 at 279-281, Ex. 2 to Pltf.'s 56.1 Stmt.) Durrbeck recounted that Lisa
Froustis, a CSC employee, and an unidentified male CSC employee
told him they observed Tate move her car from the front of the
building where she usually parked, to the back of the building
near where Rob Jones's car was parked. (Id.) The employees
observed Tate removing something from the back of her vehicle,
proceeding behind Jones's vehicle, then returning to her own
vehicle and exiting the parking lot. (Id.) When employees went
to see what had happened, they found the spray paint on the back
of the car. (Id.) Durrbeck called Washington Mutual's security
contractor; staff there advised him to contact the police.
(Id.)

By this time, Durrbeck was sufficiently concerned about Tate's
performance that he wrote a memo to Mahmud listing the various
written and verbal performance notices Tate had received since
her date of hire and recommending that Tate be terminated.
(Durrbeck Memo Jun. 13, 2002, Ex. 15 to Durrbeck Dep., Ex. 2 to
Pltf.'s 56.1 Stmt.) The memo listed the various written and
verbal performance notices Tate had received since her date of
hire. (Id.) The memo also outlines several areas in which Tate
was not meeting Washington Mutual's performance expectations and
policies. (Id.) One area of concern was the number of "Redirect
on No Answer" (RONA) calls. Durrbeck explained that a RONA call
is attributed to a call agent when a call is put through to that
agent's line and the agent does not answer after four rings and,
as a result, the call is redirected to another available agent.
(Durrbeck Dep. 7/15/3 at 210, Ex. D to Def.'s 56.1 Stmt.) Tate
had received 86 RONA calls in a five-month period, compared to
the company policy establishing the acceptable limit on RONA
calls at 15 within any given six-month period. (Id.) The memo
also states that Tate had missed 16 days of work within a
five-month period, well in excess of company policy, under which
six unscheduled absences in twelve months is considered
excessive. The court notes that Tate disputes this; she contends
that the 16 alleged absences include excused absences such as
vacation days, holidays, and sick time. (Def.'s Materials, Ex.
A., Tate Dep. at 136.) On June 17, 2002, Durrbeck monitored Tate's performance by
listening to her telephone line. He overheard what he regarded as
a "cold transfer" of a call and other violations of Washington
Mutual's policies; for example, she made two calls of a
completely personal nature to a male acquaintance.*fn3
(Durrbeck Dep. 7/15/03 at 180-181, Ex. D to Def.'s 56.1 Stmt.)
Durrbeck concluded that Tate's conduct represented a purposeful
disregard of company policy. (Id.) He then recommended to
Director Mahmud that Tate be terminated, Mahmud agreed, and Tate
was dismissed on that date. (Def.'s 56.1 Stmt. ¶ 63.)

Tate's behavior after her discharge is not technically relevant
to the issues before the court, but the court notes that
Defendant's assessment of her conduct is arguably reinforced by
the series of threatening and inflammatory e-mail communications
Tate sent to Washington Mutual employees after her employment was ended.*fn4

Other Washington Mutual Employees

Tate claims that four similarly situated-employees of
Washington Mutual who were not members of a protected class were
given more favorable treatment. The court will briefly review the
available facts regarding these employees and their relationships
with Washington Mutual CSC.

Christine Massey is a white female employed by Washington
Mutual as an entry level call agent. (Response to Plaintiff's
Local Rule 56.1(a) Statement of Facts (hereinafter "Def.'s Resp.
to Pltf.'s 56.1") ¶ 15.) There is no other evidence in the record
regarding Massey's tenure with the company, her job
qualifications, or her job performance. Debbie Caldwell is a
white female employee of the Washington Mutual CSC. (Def.'s Resp.
to Pltf.'s 56.1 ¶ 18.) It is not clear from the record whether
her job responsibilities are comparable to those of Tate, but, in
her deposition testimony, Tate refers to Caldwell as
"management." (Tate Dep. at 152.)

David Verde is a white male who was hired by Washington Mutual
CSC in September 2001. (Def.'s Resp. to Pltf.'s 56.1 Ex. 4.)
Verde received a poor performance evaluation from Washington
Mutual in July 2002, followed by a series of written performance
notices. (Pltf.'s 56.1 Stmt., Exs. 1-3.) Verde had several
performance issues for which he was cited, including
inappropriate language, threatening behavior, inappropriate
comments to customers, excessive outgoing calls, not following
appropriate procedures for calls requiring escalated support, and creating duplicate tickets. (Id.) Verde was ultimately
terminated on December 27, 2002 after just over a year with the
company. (Def.'s Resp. to Pltf.'s 56.1 ¶ 40.)

Michael Largent is a white male hired by Washington Mutual as
an entry level call agent in July 2001. (Def.'s Resp. to Pltf.'s
56.1 ¶ 41; Performance Management Form for Michael Largent, Ex. 7
to Plaintiff's Confidential Document Exhibits.) Over the course
of several months, Largent was reprimanded several times,
verbally and in writing, for tardiness and was ultimately
discharged from the company on November 12, 2002.

DISCUSSION

Plaintiff's complaint alleges that she was a victim of racial
discrimination and retaliation. Defendant Washington Mutual seeks
summary judgment on both claims. Summary judgment is proper when
"the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law."
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In
determining whether there is a genuine issue of fact, the court
must view the evidence and draw all reasonable inferences in
favor of the party opposing the motion. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). Plaintiff's Memorandum of
Law in Opposition to the Defendant's Motion for Summary Judgment
notes that in employment discrimination cases such as this, "this
standard is applied strictly, as these cases often involve
credibility issues typically reserved for a jury." Palao v.
Fel-Pro., Inc., 117 F. Supp. 2d 764, 766 (N.D. Ill. 2000).

As explained below, the court finds that Tate has not
established a prima facie case of employment discrimination and
therefore grants the motion for summary judgment on this claim.
Because the Plaintiff failed to address the retaliation claim in
her response to Defendant's Motion for Summary Judgment, the
court deems that claim waived.*fn5 I. Employment Discrimination on the Basis of Race

Tate claims that she was terminated from her employment with
Washington Mutual because she is African-American. In order to
survive a motion of summary judgment, Tate must put forth either
direct evidence that her termination was the result of
discrimination, or use the indirect "burden-shifting" approach of
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and its
progeny. Plaintiff has acknowledged that she has no direct
evidence of discrimination and therefore relies on the
burden-shifting approach. (Pltf.'s Opp. Memo, at 4.) To prevail
under that analysis, the plaintiff must establish a prima facie
case of discrimination by producing evidence that (1) she is a
member of a protected class, (2) she was satisfying the
employer's legitimate performance expectations, (3) she suffered
an adverse employment action, and (4) similarly situated
employees were treated more favorably. Oest v. Ill. Dep't. of
Corr., 240 F.3d 605, 612 (7th Cir. 2001).

A. Tate Is a Member of a Protected Class and Was Subjected to
Adverse Employment Action

As an African-American, Tate is a member of a protected class.
(Def.'s Resp. to Pltf.'s 56.1 ¶ 3.) It is also undisputed that
her discharge constitutes an adverse employment action. (Id.)
Therefore, the first and third required elements are met.

B. Satisfaction of Employer's Legitimate Performance
Expectations

The second required element of the burden-shifting approach is
that the plaintiff establish that she was satisfying the
employer's legitimate performance expectations at the time of
termination. Washington Mutual points to substantial evidence
that Tate was not performing her job duties satisfactorily at the
time of her termination and asserts that Tate cannot establish a
prima facie case of discrimination as a result of this poor performance
record. As the Seventh Circuit has observed in Peele v. Country
Mutual Insurance Co.; "If a plaintiff fails to demonstrate that
she was meeting her employer's legitimate employment expectations
at the time of her termination, the employer may not be `put to
the burden of stating the reasons for [her] termination.'"
288 F.3d 319, 328 (7th Cir. 2002) (citing Coco v. Elmwood Care,
Inc. 128 F.3d 1177, 1179 (7th Cir. 1997)).

Plaintiff argues that she does not have to provide evidence
that she was meeting the legitimate performance expectations of
her employer, citing two Seventh Circuit cases: Flores v.
Preferred Technical Group, 182 F.3d 512 (7th Cir. 1999) and
Oest. Flores and Oest, among other cases, illustrate that
where Plaintiff's performance deficiencies are no different from
those of other workers, the employer may not be entitled to
prevail at this stage of analysis.

In Flores, the plaintiff was the only employee to be
terminated out of a group of co-workers who stopped work to
protest the company's plans to initiate strict enforcement of a
rule prohibiting breaks. 182 F.3d at 513. In her federal lawsuit
for national origin discrimination, the district court granted
summary judgment for her employer on grounds that plaintiff could
not have been meeting her employer's reasonable expectations
while on a work stoppage. The Seventh Circuit affirmed, but not
on that basis: "It makes little sense in this context to discuss
whether she was meeting her employer's reasonable expectations.
None of the employees who joined the coffee room [work stoppage]
fracas were meeting [the employer]'s reasonable expectations."
Id. at 515. Instead, the Court of Appeals observed, the
evidence established that plaintiff was discharged because she
was perceived as the ringleader of the protest, not because she
was Hispanic. Id. Tate's situation is distinguishable from that
in Flores, because unlike plaintiff there, Tate was not singled
out as the only person to be terminated among a group of
employees all of whom had exhibited the same undesirable
behavior.

In Oest, similarly, the plaintiff, a corrections officer,
acknowledged performance problems, including poor attendance,
mis-counts of inmates, failures to follow orders, and
inappropriate language, but she claimed that male employees guilty of similar
deficiencies were not disciplined. As in Flores, the Seventh
Circuit concluded that a discussion of whether plaintiff was
meeting reasonable expectations was not useful if the plaintiff
could show that her employer applied those performance
expectations in a discriminatory manner. 240 F.3d at 612 n. 3. As
the Seventh Circuit explained in another context, "When a
plaintiff produces evidence sufficient to raise an inference that
the employer applied its legitimate expectations in a disparate
manner, the plaintiff [may] establish a prima facie case by
establishing that similarly-situated employees were treated more
favorably." Grayson v. O'Neill, 308 F.3d 808, 818 (7th Cir.
2002). As explained here, Plaintiff here attempts to demonstrate
such disparate treatment.

C. The Similarly Situated Employees

Tate argues that there were four similarly situated Washington
Mutual employees who violated the company's policies and were
treated more favorably: Christine Massey, Debbie Caldwell, David
Verde, and Michael Largent. (Pltf.'s Opp. Memo, at 2.) "In
determining whether two employees are similarly situated a court
must look at all relevant factors, the number of which depends on
the context of the case." Radue v. Kimberly-Clark Corp.,
219 F.3d 612, 617 (7th Cir. 2000) (citing Spath v. Hayes Wheels
Int'l-In., Inc., 211 F.3d 392, 397 (7th Cir. 2000)). "A
plaintiff must show that he is similarly situated with respect to
performance, qualifications, and conduct." Id. at 617. "This
normally entails a showing that the two employees dealt with the
same supervisor, were subject to the same standards, and had
engaged in similar conduct without such differentiating or
mitigating circumstances as would distinguish their conduct or
the employer's treatment of them." Id.

Tate claims that Christine Massey and Debbie Caldwell were
similarly situated employees who were treated more favorably with
respect to attendance. Tate, Massey, and Caldwell all returned
from lunch late one day, but Tate alone received a written
performance notice for the infraction. (Def.'s Materials, Tate
Dep., at 152.) In the court's view, the fact that co-workers were treated less harshly for a similar disciplinary infraction has
little relevance to the question whether Plaintiff's discharge
was a function of discrimination. Not every action that makes an
employee unhappy is actionable, see Fyfe v. City of Fort Wayne,
241 F.3d 597, 602 (7th Cir. 2001); Crady v. Liberty Nat'l Bank &
Trust Co. of Indiana, 993 F.2d 132, 136 (7th Cir. 1993), and the
fact that Plaintiff received a write-up when her co-workers were
only orally reprimanded does not appear to be actionable. In any
event, Plaintiff here challenges her discharge as a function of
race discrimination, and she does not contend that this single
disciplinary write-up tipped the balance.

Plaintiff also identifies Michael Largent and David Verde as
similarly-situated employees who received more favorable
treatment. Significantly, both Largent and Verde were also
discharged. With respect to Largent, the record shows he was
employed as an entry level call agent in July 2001, was promoted
to "team lead" in April 2002, but was ultimately discharged for
excessive tardiness in November 2002. (Performance Management
Form for Largent at WM000152, Ex. 7 to Plaintiff's Confidential
Document Exhibits; Def.'s Resp. to Pltf.'s 56.1 ¶¶ 40-41.)
Largent can not be considered a "similarly situated" employee
relative to Tate for two reasons: first, he was functioning at a
higher level within the organization when his disciplinary issues
led to his dismissal, and second, unlike Tate, Largent's
performance issues did not relate to his handling of customer
calls. Although Largent was originally hired as an entry level
call agent, he was promoted to "team lead" in April 2002. Largent
received positive feedback in his performance review on his
customer handling skills: "Michael interacts well with customers
and provides good customer service." (Id. at WM000151.) Largent
had significant issues with punctuality, however, as noted in the
performance review. (Id.) According to Durrbeck, Largent was
ultimately discharged for excessive tardiness. (Durrbeck Memo,
Ex. 11 to Durrbeck Dep.) Durrbeck recommended that Largent be
terminated because he had incurred a total of 18 tardiness
episodes in less than three months which, under Washington Mutual
policy, represented nine "occurrences" compared to the company,
under policy which six occurrences in 12 months is deemed
excessive. (Id.)

Tate comes closer to establishing a dispute of fact with
respect to co-worker David Verde. After being hired as a call
agent in September 2001, Verde violated the company's policies on
numerous occasions and was given many more opportunities to
address his performance issues before he was ultimately
discharged in December 2002. (Pltf.'s Opp. Memo, at 5.) Tate
notes that Verde was put on a "performance improvement plan" and
given an opportunity to address his performance issues before he
was ultimately terminated from the company. (Pltf.'s Opp. Memo,
at 7.) There were some similarities between Verde's performance
issues and those of Tate: The company issued warnings to both
employees about inappropriate language, harassing or threatening
co-workers, excessive outgoing calls, and personal phone calls.
(Durrbeck Dep. 9/11/2003, Ex. 3 to Pltf.'s 56.1 Stmt., Exs. 1-4.)
The court notes, however, there were also a number of differences
between Tate and Verde's performance problems. Unlike Verde, Tate
was also cited for attendance issues (10/5/2001), logging calls
incorrectly (12/6/2001), excessive time in "AUX" and "After Call"
modes (1/22/2002), violation of company policy against bringing
laptops to work (2/76/2002), sleeping during business hours
(6/3/2002), excessive RONA calls, as well as violations of the
"warm transfer" policy. (Tate Dep., Exs. 4-11, 14, 16.)

In any event, Tate has not satisfied the court that Verde
received more favorable treatment. Defendant acknowledges that
Tate was not put on a formal performance improvement plan.
(Durrbeck Dep. 7/15/03 at 101, Ex. 2 to Pltf's 56.1 Stmt.)
Defendant also admits that Verde was put on such a plan and given
sixty to ninety days to improve his performance and that it
agreed to provide Verde with daily reports on his performance and
training. (Def.'s Resp. to Pltf.'s 56.1. ¶¶ 23, 24, 26.) Tate,
too, however, was given direct feedback on her performance issues
and an opportunity to improve throughout the eight-month period
between her first written performance notice in October 2001 and
her discharge in June 2002. As previously noted, Durrbeck had
recommended that she be terminated prior to June 3, 2002, but
followed Mahmud's direction to give her another chance to improve.

Even if there were evidence sufficient to create an inference
of discrimination, Defendant Washington Mutual could rebut the
presumption of discrimination by proffering a legitimate reason
for Tate's termination. See Lesch v. Crown Cork & Seal Co.,
282 F.3d 467, 473 (7th Cir. 2002) (where employer offers multiple
independently sufficient justifications for an adverse employment
action, plaintiff must cast doubt on each of them to demonstrate
pretext). As noted, Washington Mutual claims that Tate was
terminated for violating the company's warm transfer
policy.*fn6 (Def.'s 56.1 Stmt. ¶ 63.) As evidence,
Washington Mutual points to Durrbeck's deposition testimony in
which he claims to have overheard her violating the policy while
he was monitoring one of her customer calls on June 3, 2002, the
same day Tate had been counseled about this very matter. Tate
denies that she violated the warm transfer policy during the call
that Durrbeck monitored, (Pltf.'s Ans. to Def.'s Stmt. of Facts ¶
63), but the transcript and tape of this recorded conversation
clearly support Durrbeck's version of events. It is undisputed
that the policy requires the call agent to introduce the customer
to the call agent receiving the transfer, then explain the
customer's problem before signing off on the call. (Def.'s 56.1
Stmt. ¶ 12.) The transcript illustrates that Tate did not follow
this procedure on one of the eleven calls recorded and that Tate
also initiated two personal calls while on duty. (Durrbeck Decl.)
Tate's discharge for violating this policy is reasonable in light
of the fact that she had been warned verbally and in writing that
any future violations of Washington Mutual policies (including, but not
limited to the warm transfer policy) would result in her
termination. (Tate Dep., Ex. 11, Ex. 14).

Plaintiff now appears to suggest that a "performance
improvement plan" or some other further opportunity to turn
things around would have made a difference, but nothing in this
record supports that speculation. Indeed, Tate appears to have
known for some time that Defendant was making a case against her.
Referring to her supervisors in a personal phone conversation
recorded a few weeks before she was discharged, Tate was recorded
as saying: "they not doing nothing but digging a hole for
themselves `cause once I get in contact with the EEOC and they
see that this documentation is bogus, and then they do try to
fire me, girl it ain't nothing but money, chaching." (Tate Call
Transcript 6/5/02, Attachment 1 to Durrbeck Decl.) Nevertheless,
despite her awareness that Washington Mutual had documented her
performance problems, Tate made little effort to improve, instead
apparently looking forward to this lawsuit to vindicate her.

CONCLUSION

The evidence establishes that Washington Mutual terminated
Plaintiff from her position as a call agent due to repeated
performance failings, including violations of its "warm transfer"
policy, not because of her race. Plaintiff has not established
that co-workers with similar performance records were treated
more favorably. Defendant's motion for summary judgment (Doc. No.
67-1) is granted.

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